State v. Melton

• Decision Date: 11 July 2013
• Docket Number: Nos. 2011AP1770–CR, 2011AP1771–CR.,s. 2011AP1770–CR, 2011AP1771–CR.
• Citation: 834 N.W.2d 345,349 Wis.2d 48,2013 WI 65
• Parties: STATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. Brandon M. MELTON, Defendant–Appellant.
• Court: Wisconsin Supreme Court

349 Wis.2d 48

834 N.W.2d 345

2013 WI 65

STATE of Wisconsin, Plaintiff–Respondent–Petitioner,

v.Brandon M. MELTON, Defendant–Appellant.

Nos. 2011AP1770–CR, 2011AP1771–CR.

Supreme Court of Wisconsin.

Argued March 14, 2013.

Decided July 11, 2013.

For the plaintiff-respondent-petitioner, the cause was argued by Jacob Wittwer, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant, there was a brief by Kevin M. Gaertner and Law Shield of Wisconsin, LLC, Milwaukee, with oral argument by Kevin M. Gaertner.

DAVID T. PROSSER, J.

[349 Wis.2d 55]¶ 1 The issue presented in this case is whether a circuit court has inherent authority to order the physical destruction of a presentence investigation report (PSI). We review a published decision of the court of appeals,¹ reversing an order of the Waukesha County Circuit Court that questioned whether the circuit court had authority to destroy a PSI and declined to do so.

¶ 2 The defendant, Brandon M. Melton (Melton), pled guilty to two felonies. The Waukesha County Circuit Court, Richard A. Congdon, Judge, requested that the Wisconsin Department of Corrections (the DOC) prepare a PSI to assist the court in Melton's sentencing. When the circuit court and the parties received the PSI, Melton disputed some of the information in the report. Judge Congdon ordered that a second PSI be prepared omitting the disputed information. He also ordered that the first PSI be sealed and then destroyed following the expiration of any appellate time limits. Judge Congdon's successor, Circuit Judge Mark D. Gundrum, modified the destruction order after Melton was sentenced. Judge Gundrum ordered that the first PSI be sealed rather than destroyed because he questioned the court's authority to remove a court document from the file and destroy it.

¶ 3 Melton appealed, and the court of appeals reversed, holding that the circuit court had the inherent authority to order the destruction of the first PSI. The court of appeals reasoned that having two PSIs in Melton's file would lead to “confusion and injustice.” State v. Melton, 2012 WI App 95, ¶ 23, 343 Wis.2d 784, 820 N.W.2d 487.

¶ 4 We reverse. We conclude that courts do not have either express or implied statutory authority to order the destruction of PSIs. The PSI statute, the Wisconsin Administrative Code,² and Wisconsin Supreme Court Rules on record retention implicate principles of preservation and confidentiality, not destruction. We also conclude that courts lack the inherent authority to order the destruction of PSIs on the facts before us or on any of the arguments Melton has made because such power is not necessary to a court's efficient and effective administration of justice. A court has adequate means of dealing with errors, omissions, or prejudicial material in a PSI without physically destroying the disputed report. A court can strike objected-to portions of a PSI and make a record that the court will not use the objected-to information. In unusual cases, a court can order that a corrected PSI be prepared, and it can seal and clearly label the superseded report.

¶ 5 To forestall further confusion on the issue presented and to mitigate the possibility of error, we outline procedures that should be followed when the bench and bar are confronted with disputed PSIs.

I. BACKGROUND

¶ 6 On September 10, 2009, Melton pled guilty to two felonies: second-degree sexual assault of a child for having sexual intercourse with a 13–year–old and theft of moveable property greater than $2,500, contrary to Wis. Stat. §§ 948.02(2)³ and 943.20(1)(a) and (3)(bf), respectively. ⁴ Other pending charges were dismissed and read in. Judge Congdon ordered a PSI for Melton. The court received identical PSIs for each felony file on November 19, 2009.

¶ 7 Melton moved to strike portions of the PSIs because they allegedly violated DOC rules and contained “prejudicial and inflammatory material which should not be included in a [PSI].” Melton asserted that the PSIs discussed certain uncharged offenses under a section entitled “Description of Offenses.” He claimed that the PSIs included statements he gave to police during an interview and that the statements in the PSIs were hearsay. Melton's motion concluded by asking that the disputed information be stricken from the reports “and ... new [PSIs] be prepared deleting that information and further that the original [PSIs] prepared on November 19, 2009 be destroyed and sealed.”

¶ 8 At a hearing on the motion, held weeks before Melton's sentencing, Melton's attorney strenuously objected to inclusion of the uncharged offenses and asked the court to strike these portions of the PSIs. In the alternative, the attorney asked the court to “simply strike the entire [PSI] and let us proceed from this point forward.” The State objected, arguing that the disputed information was “important for the [c]ourt to consider when deciding the character of” Melton. According to the State, uncharged offenses like those at issue may be included in a PSI.

¶ 9 Judge Congdon quoted a letter written by the DOC agent who prepared the PSIs, acknowledging that “[t]he decision to include this [disputed] information ... may be a deviation of the standard outline.” The State responded that it did not disagree that the information might be a deviation from the “standard outline,” but that it was not prohibited, indicating that information on the defendant's “sexual behavior” may be included in the report.

¶ 10 Judge Congdon concluded that the disputed information would be “of little use” to the court at sentencing. The judge reasoned that the disputed information “could very well be prejudicial to Mr. Melton as he goes through whatever route ... the Court will set for him.” ⁵ Judge Congdon determined that he had the authority to order the disputed information stricken as “inherent within the authority given to [him] under [ Wis. Stat. § ] 972.15,” (the PSI statute).

¶ 11 Accordingly, Judge Congdon orally granted Melton's motion to strike, and then said that the court would “ask for a new [PSI], or at least an updated one.” Melton's attorney seconded this course of action, asking that the existing PSIs in the possession of the parties and the court “be stricken and destroyed.” Melton's attorney continued, “If it's sealed in the file, it's going to become available at some point. I think the thing should be redone ... without a reference to this event.”

¶ 12 The circuit court collected the district attorney's copies of the PSIs containing the disputed information, and Melton's attorney drafted an order for each file that read in part as follows:

[State v. Melton ] came on for hearing before Hon. Richard Congdon on the 25th day of March, 2010 with appearances by Attorney Kevin G. Keane for the defendant, and Deputy District Attorney Stephen J. Centinario for the State, upon defendant's Motion to strike portions of a presentence investigation report prepared on November 19, 2009. Following the arguments of counsel, and further based upon the files and proceedings had in this matter,

It is hereby ordered as follows:

1. The Department of Corrections shall prepare an updated presentence investigation report. The updated presentence investigation report shall not include any reference to information obtained at a November 18, 2008 interrogation by the Waukesha Police Department of the defendant. In particular, the sections of the presentence investigation report dated November 19, 2009 as contained on page 2 of that document at the last paragraph commencing [disputed information partially identified] and continuing through page 3 and the first paragraph of page 4 ending with [disputed information partially identified] shall be deleted. Additionally, any references contained on page 7 in the second paragraph under Offender's Version, commencing with [disputed information partially identified] shall not be included in the updated presentence investigation.

2. The presentence investigation report dated November 19, 2009 shall be sealed and destroyed following the expiration of any appellate time limits, and defendant's copy shall be returned to the Court.

¶ 13 After the DOC provided copies of new PSIs to the court, Melton's case proceeded to sentencing. The circuit court, Judge Robert Mawdsley presiding, sentencedMelton to four years of initial confinement and eight years of extended supervision on the conviction of second-degree sexual assault of a child. The circuit court also sentenced Melton to six months of incarceration on the theft conviction. The sentences were to be served concurrently.

¶ 14 Approximately two months after sentencing, a new circuit judge, Mark D. Gundrum, sua sponte ordered a hearing to address whether the court had the authority to destroy a PSI. Ultimately, Judge Gundrum concluded that a judge had no authority to order the destruction of a PSI.

¶ 15 At the hearing, Judge Gundrum said that he reviewed the PSI statute, Wis. Stat. § 972.15, and concluded that “keeping [a PSI] confidential is what is envisioned by the statute.” Judge Gundrum said he believed that it would be “inappropriate” to destroy the first PSIs in Melton's case, although he did not identify a specific authority that prohibited destruction of a PSI.

¶ 16 Consequently, Judge Gundrum entered a “Modified Order” that was identical to Judge Congdon's previous order, except that it deleted the instruction to destroy the first PSIs after the expiration of appellate time limits. The modified order commanded that the disputed PSIs “be sealed” but not destroyed.

¶ 17 In the two records for this appeal, Judge Gundrum's modified order is taped to the front of the sealed envelopes containing the first, disputed PSIs. ⁶ The backs of these envelopes have the words “Ordered Sealed” handwritten in fluorescent highlighter. The backs of these envelopes also are stamped with the words “Do Not Open Without...